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Former Federal Prisoner Seeks Almost $280,000 in Attorney Fees from BOP

In an unusual case, Nicole Michelle Defontes is seeking nearly $280,000 in “attorney’s fees, expert fees, and costs to challenge the Bureau of Prisons’ (BOP) violations of its own rules and regulations,” according to a motion filed in the U.S. District Court for the Southern District of Florida. Named as defendants in Defontes’ legal action were John T. Rathman, the warden of the Federal Detention Center (FDC) in Miami; Carlos Rodriguez, Community Corrections Manager for the Southern District of Florida; and then-BOP Director Harley Lappin.

The motion was filed pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and 28 U.S.C. § 1927. According to Defontes’ pleading, the EAJA “waives sovereign immunity and permits the Court to award ... attorneys fees and costs ... if it finds that: 1) the government has acted in bad faith, wantonly, or for oppressive reasons in the conduct of this litigation, or 2) the government’s position on the merits of the case was not substantially justified ... [and] the Court may award fees pursuant to section 1927 based on a finding that government’s counsel has unreasonably multiplied the expense of these proceedings or acted in bad faith....”

Defontes had already served 4½ years as a federal prisoner for a drug crime. While incarcerated she graduated from high school and college, and participated in a residential drug program that offered a year off her sentence and the right to spend the last six months in home confinement. Once out of prison Defontes found a job in West Palm Beach as a drug counselor. However, on August 10, 2009 she was summoned to a halfway house, where she was arrested for allegedly failing a drug test. She was then returned to FDC Miami.

Defontes requested her attorney, and also demanded a hair test to verify the drug test results. Her theory was that a poppy seed roll, which shares characteristics of opiates derived from the poppy plant, which is used to produce heroin, might have triggered a false positive. Defontes was placed in solitary confinement after her attorney contacted the BOP.

She was administratively tried on two occasions, once in absentia and both times without legal representation. Facing an additional 2-1/2 years in prison, in September 2009 she filed a petition for writ of habeas corpus. The BOP responded to the petition by trying to transfer her to another state, until they were prevented from doing so by a court order.

Further investigation by Defontes’ attorney determined that she had not, in fact, failed the drug test because she registered 0.1 milligrams per milliliter – well below the minimum threshold of .3 mpm for a positive test result.

According to her attorney, Daniel Scott Fridman of Holland & Knight, “The BOP person in charge of the early release program didn’t even know about the cutoff.” The BOP contended that eating a poppy seed roll was itself a violation of the conditions of Defontes’ community release, but the court refused to consider that argument.

Defontes was released from prison on October 6, 2009. Federal judge Marcia G. Cooke held an evidentiary hearing the next day, stating, “When this happens in other countries we call up Amnesty International .... but for the fact of this defendant having resources, she would be in the FDC supervised release gulag.” The court granted Defontes’ habeas petition and ordered that she be placed under the custody of the U.S. Probation Office.

The BOP moved for reconsideration, which the court denied on Sept. 30, 2010, stating, “In this case the Bureau of Prisons wrongfully convicted Ms. Defontes twice, and if not for the efforts of her attorney, the Bureau of Prisons would have wrongfully deprived her of her earned good-time credits and would have wrongfully detained her beyond the time when she rightfully should have been released – all because the Bureau of Prisons failed to follow its own policies, and further failed to discover its own mistake.”

The BOP has since appealed the district court’s judgment to the Eleventh Circuit; Defontes’ motion for $243,841 in attorney fees and $34,845.90 in costs remains pending. See: Defontes v. Rathman, U.S.D.C. (S.D. Fla.), Case No. 1:09-cv-22680-MGC.

Additional source: www.dailybusiness-review.com

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